Tuesday, April 3, 2012

On reception of the common law

I recently became interested in reception "statutes," and I tracked down all of them that I could find.  Although it currently makes no practical difference how a state received the common law (the various states tend to follow general continent-spanning trends in common law, regardless of how each of them adopted the common law), it makes sense that it eventually could.

Those which adopted it by custom (or appear to have done so -- there were a few states that did not appear to have either a reception statute or a reception constitutional provision) or adopted it through their constitutions could very reasonably be understood to have given their courts the power to continue to cleanse the common law of obsolete forms and vindicate its true principles, as British courts had done over the centuries.  Those which adopted the common law by statute alone, however, even if they intended to give their courts that same power, arguably lacked the power to do it.  The constitutions of American states usually make explicit what the United States Constitution only implies: that the executive, legislative, and judicial powers are to be separated and committed to distinct branches, and that none of those branches is to possess the powers of another, other than in internal administrative matters, or where necessary in the proper execution of their own powers, or where specifically authorized by another part of the state's constitution.  If it is debatable whether courts' development of the common law is legislative activity, it should at least be clear that it violates a state's "separation of powers" clause for its legislature to enact, by reference, a body of law with the intent (and the result) of giving the courts of the state the power and the liberty to create, define and redefine, alter, and wholly reshape its content and effect.  If this power concerned only trivial matters, it might have been less inappropriate for us to continue to overlook or ignore this violation, but other than to the extent that it has been pre-empted or controlled by constitutions or legislation, it is the common law which contains and supplies the substance of our rights as they are comprehended by our legal system.

I do not bring this up because I am opposed to the development of the common law; I am not opposed to that.  Its ability to adapt is one of the reasons why it has worked so well as the "background" and foundation (please excuse the mixed metaphor) of our legal system.  However, we need to get our affairs in order so that we can practice constitutional government without absurdities, and without the need to resort to legal fictions to address those absurdities, and without opportunities for improvements in the law being lost simply because we have continued to allow such an important part of state law to rest on a source of authority which does not make sense and is incapable of being understood (other than by recognizing it as absurdity and leaving it at that).

Additionally, it is clear that as flexible as the common law is, and as important as that flexibility has been to its continued fitness for use, part of its excellence is in that it has a skeleton of principles that are not meant to be changed or violated.  Unfortunately, the way the common law is currently viewed in the legal community and treated in the courts, that "skeleton" is frequently broken.  In considering how to fortify that skeleton, it will be important for us to understand how the common law was ever instituted throughout the United States (Louisiana excepted).  I can think of a few ways in which improvements in reception "statutes" could improve the quality of the line of common law that we get out of our states' courts, partly by using them to point out some of the principles, tendencies, and traits of the common law which ought to endure even as the common law evolves over time.  However, I suspect that any attempt to make changes of that kind to reception statutes would lead others to begin to notice and think about the constitutional problem with the very idea of a reception statute, so I suggest that we (those of us who understand what I just wrote and who also care) begin to consider, discuss, and then resolve the question of how best to correct the constitutional problem.  Once we have done that, I (of course) suggest that we make the correction.

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